U.S. sends two prisoners to Yemen from Afghanistan

8/26/14 6:48 PM EDT

The U.S. government on Monday ended what appears to have been a four-year-long hiatus in the transfer of prisoners to Yemen, moving two men there from Afghanistan in what could be a precursor for releases of dozens of Yemenis held at Guantánamo Bay.

Lawyers for Fadi al-Maqaleh and Amin al-Bakri, who had fought a long legal battle against their detention and had a petition pending at the U.S. Supreme Court, announced the releases Tuesday. A U.S. government official and a spokesman for the Yemeni Embassy in Washington confirmed the transfer of the two men.

"We were pleasantly surprised that they sent the two of them back to Yemen," Tina Monshipour Foster of the International Justice Network said in an interview. "It's a big deal."

In a written statement, Foster added: "Mr. al-Maqaleh and Mr. al-Bakri have been victims of grave human rights violations at the hands of the U.S. government, including torture and extraordinary rendition, and we are absolutely thrilled that their abusive and unlawful imprisonment at Bagram has come to an end."

President Barack Obama halted transfers of prisoners from Guantánamo Bay to Yemen in 2010 in the wake of unrest in that country and an attempted bombing of a U.S. passenger plane headed for Detroit. The moratorium on transfers has become a huge obstacle to reducing the population of war-on-terror and Taliban prisoners at Guantánamo.

At present, 86 of the 149 prisoners at Guantánamo hail from Yemen. The majority of them have been cleared for release for years. In a speech last year announcing a renewed effort to close Guantánamo, Obama announced that he was lifting the ban on transfers to Yemen. However, in the more than a year since the president made that announcement, no Yemeni has actually been sent home from the island prison.

The release of the two Yemenis from Bagram Air Base near Kabul could be seen as a trial run for release of some of the Guantánamo Yemenis. Prisoner releases in combat theaters like Afghanistan and Iraq have generally drawn less attention and criticism than releases from Guantánamo, even though many of the Yemenis at Guantánamo are considered low-level fighters.

Foster said lawyers advocating for the release of Al-Maqaleh and Al-Bakri explicitly urged that the men be used to demonstrate that releases to Yemen were feasible. "We had argued for a long time to officials that these two cases be a test," she said. "They can be watched and people can report back to folks in D.C. that it wasn't the end of the world to repatriate people to Yemen."

Foster said no one ever told her that Obama's moratorium on prisoner transfers applied directly to her clients, but they made clear that the same worries about Yemen drove the reluctance to send prisoners there. "They didn’t say it was covered by that policy, but did indicate the same rationale and same problem sending people to Yemen from Bagram as it did at Guantánamo," she said.

A Pentagon spokesman declined to confirm the releases or to discuss any distinction that could lead to release of Bagram prisoners but not similarly situated detainees at Guantánamo.

"The decision to transfer a detainee is made only after detailed, specific conversations with the receiving country about the threat a detainee may pose after transfer and the measures the receiving country must take in order to sufficiently mitigate that threat, and to ensure humane treatment. We consider all detainee transfers on an individual basis," Lt. Col. Myles Caggins said.

White House spokeswoman Caitlin Hayden had no immediate comment on the releases and said discussions about the Guantánamo detainees are continuing. "We continue to review Yemeni detainees on a case-by-case basis," she said.

In 2009, U.S. District Court Judge John Bates — a George W. Bush appointee — ruled that Al-Maqaleh, Al-Bakri and Tunisian Redha Al-Najar could pursue habeas corpus cases seeking their release from U.S. custody in Afghanistan.

Foster said she expects that petition and another raising similar issues to go forward despite this week's releases because the petitions also cover the claims of two other men still in U.S. custody at Bagram: Al-Najar and a Pakistani man known as Amanatullah. However, the cases could be mooted if the men are released or turned over to Afghan custody as the U.S. military winds down its combat presence in Afghanistan.